Secrecy About Secrecy: Making Sure the FBI Is Following the Rules on Surveillance Gag Orders

Every year, the FBI sends about 50,000 "national security letters" (NSLs) to Internet service providers and others requesting information about their customers. Today we filed a lawsuit aiming to make sure that the government is following the rules when it uses this controversial tool.

NSLs allow the FBI to collect information that's extremely sensitive — e.g. the names of websites that a person has visited, or the email addresses with which she has corresponded — and to do so without judicial oversight. Unsurprisingly, government reports have detailed significant abuses.

Several years ago, the ACLU challenged one particularly troubling aspect of NSLs: the government's ability to silence recipients of NSLs using gag orders. By imposing these gag orders, the FBI cloaked the use (and abuse) of its NSL authority in near-blanket secrecy.

In a landmark ruling, a federal appellate court held in 2008 that the gag order provisions were unconstitutional. The Court held that the government could fix part of the problem, though, if it adopted a "reciprocal notice" policy. Under that policy, the government would still issue gag orders, but it would have to inform NSL recipients that they had a right to challenge the orders in court. If NSL recipients informed the government that they wanted to challenge gag orders, the government would bear the burden of initiating court proceedings. And in the course of those court proceedings, judges would actually consider the necessity for secrecy — rather than simply defer to the FBI's view that secrecy was necessary.

Earlier this year, we filed a request under the Freedom of Information Act (FOIA) to find out whether the government has implemented the reciprocal notice policy, and, if so, how. We want to know, among other things, how many gag orders the FBI has issued, how many times those gag orders have been challenged, and how many times the FBI has lifted gag orders voluntarily. We want to see the documents the FBI uses to impose gag orders, and the documents they use to inform NSL recipients that they have the right to challenge those orders in court.

But the FBI failed to release documents in response to our request, and so today we filed a lawsuit to force the FBI to comply with the FOIA. In our view, the public has a right to basic information about how the FBI is using its surveillance authority. That would include information about the FBI's use of gag orders to silence those who are asked (or compelled) to facilitate the FBI's surveillance activities.